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A split U.S. Supreme Court announced June 3 that the routine collection and profiling of DNA samples from individuals arrested and taken into custody for serious crimes does not violate the Fourth Amendment's prohibition of unreasonable searches (Maryland v. King, U.S., No. 12-207, 6/3/13).

In a 5-4 decision with an unusual grouping of justices, Justice Anthony M. Kennedy's opinion for the court likened the widespread practice to the presumptively constitutional practice of fingerprinting arrestees.

Most states and the federal system have statutes authorizing the collection of DNA samples from arrestees. Maryland has one of the more restrictive statutes, limiting the collection of DNA samples to certain felonies and mandating that officials wait until after there has been a judicial determination of probable cause to arrest before a collected sample can be profiled.

In the case below, the Maryland Court of Appeals struck down the state's DNA law (11 PVLR 767, 5/7/12). The court held that the state law flunked a Fourth Amendment totality-of-the-circumstances balancing test because taking DNA samples is unreasonable unless there is a legitimate need to establish the arrestee's true identity.

At the Feb. 26 oral argument, the state urged the Supreme Court to overturn the ruling, arguing that the state court failed to fully appreciate the impact on an individual's privacy of the fact that he or she has been taken into custody (12 PVLR 380, 3/4/13). “The cornerstone of our argument is that when … an individual is arrested on a probable cause … that person, by virtue of being in that class of individuals whose conduct has led the police to arrest him based on probable cause, surrenders a substantial amount of liberty and privacy,” Katherine Winfree of the Maryland Attorney General's Office, in Baltimore, told the justices.

The Supreme Court reversed the Maryland Court of Appeals decision.

Identification Interests

The defendant in this case endeavored to distinguish fingerprinting from DNA profiling on the grounds that an individual's DNA contains far more personal information than an individual's fingerprints and that fingerprinting primarily serves the “special need” of identifying an individual who has been taken into custody.

Under the Fourth Amendment's “special needs” doctrine, warrantless, suspicionless searches such as the drug testing of railway workers or student athletes are not “unreasonable searches” within the meaning of the Constitution because they are undertaken for a primary purpose unrelated to governments' ordinary interest in crime solving. The defendant, as well as the four dissenters in this case, argued that DNA profiling is different because its primary purpose is investigating unsolved crimes rather than identifying the person arrested.

The court, however, distinguished its special-needs cases on the ground that they did not involve individuals whose reasonable expectations of privacy had been significantly diminished by their being taken into custody. Accordingly, the court used a general balancing test to determine the reasonableness of the DNA profiling of arrestees.

The court pointed out that DNA profiling is more accurate than fingerprinting and could conceivably reveal that someone arrested for a comparatively less serious offense is actually very dangerous, which would be essential to making bail determinations or jail placement decisions.

“Just as fingerprinting was constitutional for generations prior to the introduction of [rapid, computerized fingerprint comparisons], DNA identification of arrestees is a permissible tool of law enforcement today. New technology will only further improve its speed and therefore its effectiveness,” the court said.

Dissent

Justice Antonin Scalia, joined in a dissenting opinion by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, contended, “The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous.”

“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence,” Scalia said.

“Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else),” he asserted.

Unanswered Question

William M. Jay, a partner at Goodwin Procter LLP, in Washington, filed an amicus curiae brief in the case on behalf of the National Association of Federal Defenders. Speaking for himself, Jay told BNA, “The biggest question left open is whether this decision allows DNA collection even from people arrested for less serious crimes.”

Michael T. Risher, staff attorney at the American Civil Liberties Union Foundation, in San Francisco, and Roberta Schwartz, a veteran prosecutor at the Los Angeles County District Attorney's Office, told BNA they agreed that the court's opinion does not directly resolve whether governments could constitutionally extend the practice of DNA profiling to people arrested for less serious felonies or misdemeanors.

Scalia made a similar point in his dissenting opinion: “If one believes that DNA will 'identify' someone arrested for assault, he must believe that it will 'identify' someone arrested for a traffic offense. … Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Michael R. Dreeben, of the U.S. Solicitor General's Office, in Washington, argued for the Department of Justice, appearing as amicus in support of the state. Kannon K. Shanmugam, of Williams & Connolly LLP, in Washington, argued for the defendant.

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